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March 20, 2014

Myriad Appeals Adverse Preliminary Injunction Decision

On March 13, Myriad Genetics filed a Notice of (interlocutory) Appeal with the Federal Circuit. Myriad is seeking to have the Court review and reverse the District Court's denial of the company's preliminary jnjunction motion against Ambry Genetics in its on-going (and now consolidated) lawsuit on several claims from Myriad's BRCA gene testing patents. It is unlikely that the District Court will stay discovery and other pretrial aspects of the pending lawsuits, and Ambry can continue to provide genetic diagnostic tests including the BRCA1 and BRCA2 mutation tests while the appeal is pending (as can the other defendants: Quest Labs, Labcorp, Counsyl, GeneDx and Invitae).

It is possible that this is Myriad's last gasp in these litigations; in view of the rationale the District Court used to find that Ambry had provided sufficient evidence to raise a serious question of whether Myriad's asserted claims recite patent eligible subject matter, affirmance by the Federal Circuit should be expected to be followed rapidly by summary judgment motions using the District Court's own reasoning to find Myriad's claims invalid.